DCT
1:18-cv-04210
Diversey Inc v. Pops Tech LLC
Key Events
Amended Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Diversey, Inc. (Delaware)
- Defendant: POPS Technologies LLC (Georgia)
- Plaintiff’s Counsel: Alston & Bird LLP; Michael Best & Friedrich LLP
- Case Identification: 1:18-cv-04210, N.D. Ga., 11/18/2019
- Venue Allegations: Venue is asserted based on allegations that Defendant POPS Technologies LLC operates one or more offices, conducts regular and substantial business, and has committed acts of infringement within the Northern District of Georgia.
- Core Dispute: Plaintiff alleges that Defendant’s multi-function chemical dispenser products infringe two patents related to dispensers capable of delivering mixed chemical solutions at varying flow rates and concentrations.
- Technical Context: The technology concerns dispensers for mixing liquid chemical concentrates with a diluent, such as water, for use in commercial cleaning, hygiene, and facility management industries.
- Key Procedural History: The complaint alleges that Plaintiff provided Defendant with pre-suit notice of infringement of the ’441 patent in February 2018 and notice of the pending application that became the ’398 patent in January 2019. These allegations may form the basis for the asserted claims of willful infringement.
Case Timeline
| Date | Event |
|---|---|
| 2001-01-12 | Earliest Priority Date for ’441 and ’398 Patents |
| 2017-04-11 | U.S. Patent No. 9,616,441 Issues |
| 2018-02-27 | Alleged Pre-Suit Notice of ’441 Patent Infringement |
| 2019-01-22 | Alleged Notice of Pending Application for ’398 Patent |
| 2019-06-25 | U.S. Patent No. 10,328,398 Issues |
| 2019-11-18 | Amended Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 9,616,441 - "Multiple Function Dispenser"
- Issued: April 11, 2017
The Invention Explained
- Problem Addressed: The patent addresses the limitations of prior art chemical dispensers that could not provide a single, integrated device capable of dispensing a chemical concentrate mixed with a diluent at both different flow rates (e.g., a low rate for filling a bottle) and different concentrations (e.g., a high concentration for bucket filling) in a precise and controlled manner (’441 Patent, col. 1:39-51).
- The Patented Solution: The invention is a dispenser featuring an "eductor" mechanism that is both slideable and rotatable within the dispenser body (’441 Patent, col. 2:60-64). The sliding movement of the eductor is designed to control the flow rate of the final mixture, while rotational movement adjusts the concentration of the chemical concentrate being drawn into the water stream, thereby providing dual functionality in one device (’441 Patent, col. 2:1-5). The structure of the multi-part eductor is detailed in the specification and figures (’441 Patent, Fig. 3; col. 3:42-53).
- Technical Importance: This approach allows a single dispenser to serve multiple functions that would otherwise require separate equipment, enhancing versatility for end-users in commercial cleaning environments (’441 Patent, col. 1:40-44).
Key Claims at a Glance
- The complaint asserts infringement of at least independent claim 1 and alleges that one or more claims are infringed (Compl. ¶15, 18).
- Essential elements of independent claim 1 include:
- A dispenser for dispensing different concentrations of chemical concentrate into a stream of water from a container at different flow rates.
- A body member with a through bore and an inlet for pressurized water.
- An eductor partially disposed in the bore, in fluid communication with the chemical concentrate, and including a plurality of spaced apertures.
- The eductor is movable to different positions relative to the body to control both different concentrations of the chemical and different flow rates of the mixture.
U.S. Patent No. 10,328,398 - "Multiple Function Dispenser"
- Issued: June 25, 2019
The Invention Explained
- Problem Addressed: The patent addresses the same general problem as the ’441 Patent: the need for a versatile, multi-function chemical dispenser (’398 Patent, col. 1:21-51).
- The Patented Solution: This invention focuses on a specific structural configuration of the dispenser, claiming a "nozzle" fluidly coupled to the eductor and a separate "spout" fluidly coupled to the nozzle (’398 Patent, col. 6:63-64). The spout is characterized as being positioned below the nozzle and configured to discharge the mixed solution in a generally downward direction, an arrangement suitable for filling open-top containers like buckets (’398 Patent, col. 3:39-41, col. 6:64-69).
- Technical Importance: The claimed spout configuration provides an ergonomic and practical means for low-foam, low-energy filling of buckets, a common application in the janitorial and sanitation industries (’398 Patent, col. 1:42-47).
Key Claims at a Glance
- The complaint asserts infringement of at least independent claim 1 and alleges that one or more claims are infringed (Compl. ¶15, 22).
- Essential elements of independent claim 1 include:
- A dispenser with a body, an inlet for pressurized water, and a slidable eductor to control different flow rates.
- A product passage to provide chemical concentrate to the eductor's fluid passage.
- A nozzle fluidly coupled to the eductor.
- A spout fluidly coupled to the nozzle, positioned below the nozzle, and configured to discharge the mixed concentrate in a generally downward direction.
III. The Accused Instrumentality
Product Identification
The complaint identifies Defendant's "MF System products," including the "Maintenance Free Mop Station ('MFMS Dispenser')," as the accused instrumentalities (Compl. ¶2, 14).
Functionality and Market Context
The complaint alleges the MFMS Dispenser is a "multi-function dispenser for chemical concentrates" that incorporates the patented technology (Compl. ¶2). A photograph in the complaint depicts the accused MFMS Dispenser as a handheld, trigger-operated spray head attached to a chemical bottle (Compl. p. 6). The complaint alleges that the accused products are sold in the same markets as Plaintiff's products and are sold to Plaintiff's direct competitors (Compl. ¶2, 14, 23). The complaint does not provide specific details on the internal mechanics or operation of the accused product, instead making conclusory allegations that it embodies the patent claims (Compl. ¶15).
IV. Analysis of Infringement Allegations
The complaint alleges that the accused MFMS Dispenser embodies every limitation of at least claim 1 of each asserted patent but does not provide element-by-element factual support for this allegation (Compl. ¶15).
’9,616,441 Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a body member having a through bore with an inlet end adapted to be connected to a source of pressurized water at one end and an outlet at the opposite end... | The complaint alleges the MFMS Dispenser includes a body with a water inlet and an outlet. | ¶15, 18 | col. 3:32-38 |
| an eductor at least partially disposed in the bore, the eductor being in fluid communication with a source of chemical concentrate and including a plurality of spaced apertures through which chemical concentrate flows... | The complaint alleges the MFMS Dispenser includes an eductor in the body's bore that draws chemical concentrate through multiple apertures. | ¶15, 18 | col. 3:42-47 |
| ...the eductor movable to different positions relative to the body member to provide control of both different concentrations of chemical concentrate and different flow rates of water and chemical concentrate to the outlet. | The complaint alleges the eductor in the MFMS Dispenser is movable to control both the chemical concentration and the final mixture's flow rate. | ¶15, 18 | col. 2:1-5 |
’10,328,398 Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a body including a bore and an inlet fluidly coupled to the bore and adapted to be connected to a source of pressurized water; | The complaint alleges the MFMS Dispenser includes a body with a bore and a water inlet. | ¶15, 22 | col. 3:31-35 |
| an eductor at least partially disposed in the bore and defining a fluid passage, the eductor slidable relative to the body to provide control of different flow rates... | The complaint alleges the MFMS Dispenser has a slidable eductor within the bore that controls the flow rate of the mixed solution. | ¶15, 22 | col. 1:49-51 |
| a product passage connected between the container and the body to selectively provide chemical concentrate to the fluid passage; | The complaint alleges the MFMS Dispenser has a passage to convey chemical concentrate from the container to the eductor's fluid passage. | ¶15, 22 | col. 4:5-6 |
| a nozzle fluidly coupled to the eductor; and | The complaint alleges the MFMS Dispenser has a nozzle connected to the eductor. | ¶15, 22 | col. 3:40-41 |
| a spout fluidly coupled to the nozzle and configured to discharge the water and chemical concentrate to a reservoir, the spout positioned below the nozzle and extending generally downward... | The complaint alleges the MFMS Dispenser has a spout connected to the nozzle that is positioned below it and directs flow downward. | ¶15, 22 | col. 5:61-69 |
Identified Points of Contention
- Evidentiary Questions: The complaint makes conclusory allegations without detailing how the accused product functions. A central dispute will concern the evidence presented to demonstrate the internal structure and operation of the MFMS Dispenser. For the ’441 Patent, a question is whether the accused device’s mechanism provides independent control over both concentration and flow rate via movement, as claimed.
- Technical Questions: For the ’398 Patent, a key technical question is whether the accused device contains both a "nozzle" and a distinct "spout" positioned below it. The analysis will depend on whether the part of the accused device that directs outflow is a separate "spout" or an integrated feature of the "nozzle" assembly, and whether that distinction matters under the proper claim construction.
V. Key Claim Terms for Construction
The Term: "eductor" (’441 Patent, Claim 1)
- Context and Importance: This term is the central functional component of the ’441 Patent's asserted claim. The outcome of the infringement analysis will depend heavily on whether the mechanism inside the accused MFMS Dispenser meets the legal definition of an "eductor" that is movable to control both concentration and flow rate.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification provides a general functional description, stating "An eductor is slideably and rotatably received in the body member" and is connected to a trigger to cause its movement (’441 Patent, col. 2:60-64). This could support a construction covering any mechanism that performs the claimed dual-control function via movement.
- Evidence for a Narrower Interpretation: The patent discloses a specific two-part embodiment of the eductor (parts 24 and 26) with detailed structural features like a diverging passage, seals, and specific interfaces with a valve assembly (’441 Patent, Fig. 3; col. 3:42-53). A party could argue that the term should be limited to a structure with these disclosed characteristics.
The Term: "spout" (’398 Patent, Claim 1)
- Context and Importance: This term is a critical limitation in claim 1 of the ’398 Patent, distinguishing it from the prior art and the ’441 Patent. Infringement will hinge on whether the accused product has a structure that qualifies as a "spout" that is "positioned below the nozzle" and directs flow downward.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The claim language describes the spout functionally, as being "fluidly coupled to the nozzle and configured to discharge the water and chemical concentrate to a reservoir" in a "generally downward direction" (’398 Patent, col. 6:64-69). This may support a construction that covers any part of the dispenser housing that directs flow downward from the nozzle.
- Evidence for a Narrower Interpretation: The preferred embodiment shows the spout (22) as a structurally distinct component, connected to the nozzle (20) via a flexible tube (15) (’398 Patent, Fig. 1, Fig. 3; col. 3:39-41). This could support a narrower construction requiring the "spout" to be a separate physical element from the "nozzle".
VI. Other Allegations
- Indirect Infringement: The complaint alleges inducement and contributory infringement of the ’398 Patent. It alleges POPS sells the accused dispenser with the specific intent that its customers, including Plaintiff's competitors, will infringe by using it (’23). It further alleges the dispenser is a material part of the invention, is not a staple commodity, and is especially adapted for an infringing use (Compl. ¶24).
- Willful Infringement: Willfulness is alleged for both patents. For the ’441 Patent, the claim is based on alleged pre-suit notice of infringement on February 27, 2018 (Compl. ¶20). For the ’398 Patent, the claim is based on alleged notice of the published application on January 22, 2019, and awareness of the issued patent since June 25, 2019 (Compl. ¶23, 26). The complaint alleges Defendant took no steps to avoid infringement after these notices.
VII. Analyst’s Conclusion: Key Questions for the Case
- A central issue will be evidentiary: As the complaint lacks detailed infringement contentions, the case will likely focus on evidence from discovery showing the precise internal mechanics of the accused MFMS Dispenser. The key question is whether Plaintiff can prove that the accused device operates in a manner that meets the specific dual-control functional limitations of the "eductor" as recited in the '441 patent.
- The dispute may also turn on claim construction: A core question for the '398 patent will be whether the term "spout", in the context of the patent's specification and figures, requires a structurally separate component from the "nozzle", or if it can be construed more broadly to cover an integrated discharge feature of the dispenser housing.
- A significant question for damages will be willfulness: Did the alleged pre-suit notices give Defendant the requisite knowledge of infringement to create an objective risk, and did Defendant’s continued sales constitute egregious conduct sufficient to support an award of enhanced damages under 35 U.S.C. § 284?